Every year, in every state, an unhappy spouse takes the children, travels to another state (normally where family or friends reside) and files for divorce or legal separation—and of course custody. In some of these cases, the fleeing spouse has good reason to want to separate and create physical distance from the other spouse, such as in cases of domestic violence.1 In any event, the remaining spouse is normally shocked and unsure what to do. This blog explores the legal issue of a spouse fleeing Indiana with the parties’ children and going to another state and filing for divorce or legal separation, focusing on the rights of the remaining spouse.
Fortunately, this problem is one that is covered by an agreement between states, which is called the Uniform Child Custody Jurisdiction Act (“UCCJA”)2 in Indiana and adopted in some form by all states. While it is not a perfect remedy, it generally provides that a child be returned to his or her “home state”. The “home state” is a legal term of art and normally (after some litigation) is where the court in another state will order the child returned. So what is a home state? A “home state” is the state in which a child lived with a parent or person acting as a parent for at least six (6) consecutive months immediately before the commencement of the proceeding. In the case of a child less than six (6) months of age, it is the state where the child lived since birth with a parent or person acting as a parent.
In most cases, it is clear that the state where the parent left behind is living is the child’s “home state”. That said, at this point, to effectuate return of the child to his or her “home state” it is necessary to retain counsel to facilitate return. Under the UCCJA, a parent simply cannot go to a court in the “home state” and obtain an order to return the child. Practically, it would be difficult to enforce in another state unless it was facilitated by DCS and/or the police which is a dubious proposition. In fact, if there is a legal action pending in another state, the court in the child’s home state may be prohibited from issuing any order to return the child.
At this point, your Indiana counsel would then likely hire co-counsel in the other state and seek to have the judges communicate. This may seem old fashioned, but there is literally a provision for the judges in the two states to talk with each other and decide where the litigation will be heard under the UCCJA. Normally, this is the child’s “home state” and the court in the other state issues an order to return the child to Indiana and helps enforce the order so that happens. There are numerous other possibilities that may come into play in obtaining the return of the child to his or her home state with skilled counsel.
One obvious possibility is coordinating a motion to dismiss a case in a foreign state because jurisdictional pre-requisites are not met. In fact, to avoid abuse of the legal system in domestic cases, most states require a person to be a resident of a state for a period of time before he or she can file for divorce or legal separation. However, not all states have such a requirement. In addition, it may be more beneficial to leave an improper action pending versus dismissing same with the help of co-counsel to have the judge of that foreign court assist with returning the child to his or her “home state”.
While interstate child custody cases are complex and often time-consuming because they involve technical questions of jurisdiction, Dixon & Moseley, P.C. advocates are skilled at handling these cases. The firm has handled numerous interstate and international custody disputes and are available to assist in your case. We hope this blog provides you with insight into interstate jurisdictional custody disputes. This blog is written for general educational purposes only. It is not intended as legal advice or a solicitation for services. It is an advertisement.
- There are remedies under existing Indiana law to address such safety concerns and this is not a legal justification to flee the State.
- This codified in Indiana Code 31-20-1-1 et seq. This may be referred to as the Uniform Child Custody Jurisdiction Enforcement Act in some jurisdictions.
